ITEM NO. 13:          PCD-2 (W/RESTRICTIONS) TO PCD-2 (W/RESTRICTIONS); 19.199           ACRES; NORTHWEST CORNER W. OF 6^TH STREET AND WAKARUSA DRIVE (BPD)

Z-06-18-03:  Consider rezoning of 19.199 acres and adjacent rights-of-way from PCD-2 with restrictions (Planned Commercial) District to PCD-2 with restrictions.  The property is located at the northwest corner of W. 6^th Street and Wakarusa Drive.  6Wak Land Investment, LLC, is the property owner of record.  Initiated by the City Commission on June 3, 2003.

Student Commissioner Bittenbender was recused.

STAFF PRESENTATION

Mr. Dyer explained that the City Commission initiated this rezoning request to restrict uses, specifically to prohibit variety stores and home improvement stores, based on safety concerns relative to traffic flow.  The rezoning would also reduce the maximum square footage of commercial space and the size of any single commercial building in conformance with the adopted 6^th & Wakarusa area plan.  Additionally, no building permits would be issued until the 6^th Street improvements were substantially complete.

Comm. Lawson asked if the 6^th Street improvements would eliminate the traffic problems cited as the reason for the revised zoning.  Staff agreed this was so for the intersection, but KDOT and the City Commission had been concerned that the ultimate buildout of the entire area would overwhelm the new street improvements, making the intersection perform at a failing level of service.

The Commission asked for clarification on the Staff Report comment that the rezoning might decrease the speculative value of the property.  Mr. Dyer explained “speculative value” referred to the presumed value the land would carry after being developed with a given use.  Different uses would result in different speculative values.  Staff was not prepared at this time to answer the question of whether this would constitute a taking.

It was discussed that Final Development Plans typically carry an 18-month expiration date from the date of City Commission approval.

Staff responded to questioning that the City Commission had initiated a number of rezonings without the express approval of the property owner.  North Lawrence was cited as an example.

It was discussed and established that “Department Store” should not be crossed off the list of permitted uses, since the Comprehensive Plan stated a small store of this type would be permissible.

PROPERTY OWNER PRESENTATION

It was established that the property owners’ representative would be given 10 minutes of presentation time and would also be allowed 5-minutes for closing comments following the public hearing.

Bill Newsome, 6Wak Land Investments, referenced his letters dated January 26, 2004 and February 23, 2004 as a reasonable summary of the applicant’s view of this matter. 

Mr. Newsome asked to respond to the question put to Staff about the City Commission’s initiation of rezonings.  He said that there had never been a case concerning a commercial piece of property with a Final Development Plan for which the user had attempted to obtain a building permit; this was “an unprecedented and unparalleled occurrence”.

Mr. Newsome listed ways in which he said the City had attempted to “head off Wal-Mart”:

1. Instructed Staff to stop issuing building permits, “The District Court had to make the City follow their own rules”;

2. Issued a building permit moratorium that was only supposed to last 6 months but had been extended twice;

3. Initiated a Text Amendment to change the relevant zoning definitions;

4. Initiated changes to the adopted Area Plan;

5. Initiated downzoning; and

6. Blocked the depositions of City Staff members.

Mr. Newsome said, “The City’s attempts to block Wal-Mart are so transparent that they are laughable”, except for the wasting of time and resources on the all sides.

It was stated that nothing about the surrounding zoning, land uses or traffic patterns had changed in the two years since the Final Development Plan was approved, and any reference to “the public safety and welfare” was “wrong”.

Mr. Newsome closed his portion of the property owners’ presentation to tell the public not to blame Staff that the City Commission was using the Planning Commission as a pawn in a legal battle.  He asked the Commission to defer this Item indefinitely until litigation was resolved.

Jim Bauers, attorney for the property owner, addressed the issue of speculative value, saying the subject property had such a value based on its approved development plan including a large building that could be used as a variety store.

Mr. Bauers said a building permit was applied for in plenty of time, asking to build a variety store.  The City had denied this application, and the property owner had responded by filing suit.  This was followed by additional suits “every time the City took another step to block us”.

In his opinion, this rezoning would indeed constitute a taking, and another lawsuit would be filed if such a taking occurred.

Comm. Johnson asked for clarification on a statement in the February 23, 2004 letter that the property owner would be happy to discuss a change in zoning once litigation was resolved.  She asked if that could be interpreted to mean the property owner might be amenable to some other zoning category for the subject property?  The property owner’s representative responded that this issue was a “poorly disguised effort to put [the Planning Commission] in the middle of a legal battle”.

Once the legal issue was completed, if the Commission felt there was still a reason to debate the issue, the property owners would be willing to enter discussion at that time although they felt they had a legal right to the zoning they had been granted. The property owner again asked the Commission to remove themselves from the issue until litigation was resolved.

PUBLIC HEARING

Alan Cowles, President of the West Lawrence Neighborhood Association, said the property owners were talking about procedure and property rights, not the rights of citizens to plan their own neighborhoods. 

He believed there was universal agreement no one wanted 6^th Street to repeat the problems of 23^rd Street and the citizens had a right to plan to avoid that.

Mr. Cowles said the out-of-town builders would be happy to build, then leave the City to deal with the additional traffic, reduced safety, blight of vacant buildings, excessive retail commercial, and losses to the Downtown commercial area.  The Planning Commission had the ability to prevent these problems and the West Lawrence Neighborhood Association asked the Commission to do so.

CLOSING COMMENTS

Bill Newsome responded to the comments that the neighborhood had had no chance for input, stating there had been multiple meetings with the neighborhood and the submission process allowed additional opportunities for public comment.

Regarding the public comment about out-of-town builders, Mr. Newsome pointed out that the two property owners both lived in Lawrence, near the subject property.

Related to property value, Mr. Newsome said any appraiser in the country would say the proposed rezoning would impact the land’s market value.  Mr. Dyer said Staff was aware that this rezoning request may decrease land value.

Mr. Newsome referenced Mayor Dunfield’s statement that the “zoning question” should be solved, not delayed further.  Mr. Newsome stated there was no zoning question, that currently approved zoning was complete and binding.  The only question was “how long the City [was] going to block Wal-Mart” and how much it would cost the taxpayers. 

Mr. Newsome said the Planning Commission had the responsibility to serve the citizens of Lawrence as an independent voice.  Chairman Burress replied that he did not lose his professional opinion by making recommendations to the City Commission in the City’s best interest.

COMMISSION DISCUSSION

Comm. Johnson verified with Staff all the changes being proposed.

Chairman Burress said there had been no testimony from the property owners about whether or not the proposed rezoning made sense from a land use perspective, only making statements about the unfairness of actions that were outside of the Planning Commission’s control.

There was discussion about the relevance of the current lawsuits to this agenda Item and whether Staff’s inability to respond to questions regarding the lawsuit issues implicitly made the Planning Commission part of the litigation.

In Staff’s opinion, the Planning Commission held no judicial sway since the City Commission had the power of final approval.  The Planning Commission was not involved in the procedural issues of the lawsuit and the City Commission and City Legal Department had asked the Planning Commission to address the current agenda Items.

Comm. Lawson commented that the Planning Commission could be confident that their jobs were in no way jeopardized by their actions here, but Staff did not have that comfort.  He felt the Commission should take responsibility and move ahead.

Comm. Schachter referenced the motion that had been approved for the current zoning.  He had made the motion and explained that zoning had been approved with the understanding that a home improvement store was the intended use.  Big box stores and department stores - including discount department stores - were not included in the approved uses.

Once it was established that a home improvement store would not be built, the City Commission asked the Planning Commission to reevaluate appropriate uses based on the Comprehensive Plan.   The Comprehensive Plan defines big box stores according to square footage (a single store over 80,000 square feet) and states that these uses are not suitable for Community Commercial Centers.

The Commission extensively discussed the role of the Planning Commission in this process, the importance of looking at planning issues and not “succumbing” to “political whims” or setting a precedent of doing as the City Commission said instead of acting as an independent body.

It was suggested that, as officials elected based on campaign promises, it was not inappropriate for the City Commission to be politically motivated.  It was noted that this might result in changing rules, but the Planning Commission had no control over how the system worked.

It was discussed that, since they were not the final decision-makers in this process, the Planning Commission should “step back and let those in control deal with it”, and spending extensive amounts of time in these types of discussions instead of focusing on planning issues was not the correct course.

It was suggested that there was no reason to deal with this Item at this time, since the court’s decision could make the City’s decision moot or could bring the property owner back into discussions. It was countered that the City Commission should be respected with a timely decision, just like any other applicant.

Comm. Schachter summarized his reasoning for the motion he was prepared to make:

· The Comprehensive Plan says big box stores should only be allowed in Regional Commercial Centers

· The subject area is intended as a Community Commercial Center

· The proposed rezoning allows the same amount of total square footage, only reducing the size of a single store below the 80,000 square feet that defines a big box store

ACTION TAKEN

Motioned by Comm. Schachter, seconded by Comm. Haase to approve the rezoning of 19.1999 acres from PCD-2 with restrictions to PCD-2 with revised restrictions and forward it to the City Commission with a recommendation for approval.  This motion was based on the findings of fact presented in the body of the Staff Report, the Comprehensive Plan and the new area plan for the subject intersection and was subject to the following conditions:

1.  No one single commercial retail use shall occupy more than 80,000 gross square feet of space;

2. The total commercial retail space on the subject property shall not exceed 154,000 gross square feet;

3. No building permit will be issued until the W. 6^th Street Project is substantially completed; and

4. The below listed permitted uses be included as part of the rezoning ordinance. List of uses to be attached.

DISCUSSION ON THE MOTION

Comm. Angino said he did not think it was ethical for the Commission to act on this issue, although they had been told it was legal.

Comm. Schachter said there was only one possible choice based on the planning, not politics

Comm. Lawson asked why the plan approved in the winter of 2001 for 154,100 square feet, including one building of 132,000 square feet, was no longer appropriate.  Comm. Schachter responded that the approval was given with the understanding that the proposed use would be a home improvement store.  The impact of a use like Wal-Mart (with no specific user stated at that time) was prohibited based on several factors, including the impact on Downtown commercial development.  

Although Comm. Lawson thought Wal-Mart had been clearly stated as the potential user, Comm. Haase agreed with Comm. Schachter that, at the time the current zoning was approved, Wal-Mart was not proposed as a user.

The Commission agreed unanimously to extend the meeting 30 minutes.

Chairman Burress outlined the conflicting arguments, which were determined to be the basis of the court case.

ACTION TAKEN

Motion on the floor was to approve the rezoning of 19.1999 acres from PCD-2 with restrictions to PCD-2 with revised restrictions.  This motion was based on the findings of fact presented in the body of the Staff Report, the Comprehensive Plan and the new area plan for the subject intersection and was subject to the following conditions:

1.  No one single commercial retail use shall occupy more than 80,000 gross square feet of space;

2. The total commercial retail space on the subject property shall not exceed 154,000 gross square feet;

3. No building permit will be issued until the W. 6^th Street Project is substantially completed; and

4. The below listed permitted uses be included as part of the rezoning ordinance. See attached list

Motion failed to carry, 5-5, with Comm.’s Schachter, Burress, Johnson, Haase and Riordan voting in the affirmative.  Comm.’s Jennings, Eichhorn, Angino, Schenewerk and Lawson voted opposition. 

RECOMMENDED USE RESTRICTIONS

	ZONING DISTRICTS						PERMITTED USE GROUPS	Parking Group	Special Cond.
	CP	C1	C2	C3	C4	C5
20-709.10			S	S	S	S	USE GROUP 12.  RETAIL STORES - PERSONAL SERVICES.  Certain types of retail stores and service establishments which: (a)         Provide for a wide variety of local consumer and transient needs, and (b)      Have a small service area and are, therefore, not distributed widely throughout the city. (1)         Retail Stores and Service Establishments Altering, pressing, repairing of wearing apparel Antique sales Appliance, furniture, home furnishings, sales, rental repair Art supply sales Automobile service stations Bank, savings & loan and trust company Barber or beauty shop Bicycle sales, rental, repair Book sales Bowling alley Camera or photographic supply sales Clothing sales Club or lodge, whose chief activity is carried on as a business Computer store; sales, service and equipment Confectionery store Department store Drug store Dry cleaning Eating place, enclosed, without dancing or entertainment and not         providing service in  automobiles Florist shop and greenhouse Food convenience store, including gasoline sales and single-bay auto wash (Ord. 6205) Food store, including retail bakery Furrier shop, including storage of furs Garden supply sales Gift, novelty, souvenir sales Hardware store and small tool rental, but not including sales of lumber or       industrial hardware Hat blocking and repair Hobby supply sales Ice vending machine Interior decorating shop Jewelry sales and repair Laundry pick-up station Laundry, self-service only Licensed premises Liquor, wine and beer sales, for consumption off the premises Loan office Locksmith, key shop Mail order agency Music, musical instrument and phonographic record sales Newsstand Nursery stock sales Optical goods, sales Orthopedic or medical appliance sales Paint and wall paper sales Pawnshop (Ord. 5033) Photographic processing Photographic studio Post Office Quick copy or duplicating center Radio and television studio Reading room Sewing machine sales and repair Shoe repair and sales Sporting goods sales Surgical and dental supply sales Theatre, indoor commercial Variety store Video store, sale or rental of video equipment, movies and games parlor	12 13 13 12 24 12 11 13 12 10 12 15 26 12 12 12 11 12 26 12 12 11 13 13 12 12 13 12 13 12 12 12 11 11 12 13 12 12 13 11 13 13 12 13 12 15 12 12 11 12 12 12 12 12 12 9 12 12	1428 1440 1453 1453 1440 1453
							2.          Similar Uses Other uses which (1) are similar to the listed uses in function, traffic- generating capacity, and effects on other land uses, and (2) are not included in any other use group. 3.          Accessory Uses (Ord. 6578)
20-709.11				S	S	S	USE GROUP 13.  AUTOMOTIVE SERVICES; RETAIL SALES; OTHER.  Primarily automotive service establishments and accessory uses, including consumer and non-consumer retail goods and services not appropriate for the neighborhood shopping district, including certain goods and services for agricultural, industrial, commercial, or institutional use. 1.          Automotive Services and Retail Sales Aircraft sales, rental, service Ambulance service Amusement park, commercial Auction room auctioneer Automobile parking garage Automobile parts store; tires & accessories Automobile repair and services Automobile sales, service, rental (new and used) Automobile service station Barber and beauty equipment sales Baseball park, commercial Blueprinting and similar reproduction processes Boat and marine sales, rental and repair Bus passenger station Business machine rental, repair, sales Car or truck wash Carnival or circus Carting, crating, express hauling, moving and storage Caterer Eating establishment, enclosed, with dancing or entertainment Eating establishment, providing only drive-up service or no seating facilities Exterminator, pest Food convenience store, including gasoline sales Food locker plant, for consumer use Free standing automated banking or dispensing facility Funeral home, mortuary, or undertaking establishment Garage or parking for common or public utility vehicles Glass sales and cutting shop Golf driving range, commercial, (pkg. requirement applies to tee area only) Golf pitch and putt courses, miniature golf course Home improvement center Hotel Laboratory, medical or dental Leather goods, sales and repair Linen supply, diaper service, uniform supply Liquids, flammable, underground storage of Lumber, limited sales Media Store (Ord. 7226) Mobile homes, sales and service Monument sales, including incidental processing Motel Motorcycle sales, service and rental Office equipment and supplies, sales and service, rental and repair Pet shop Photostatting Plumbing fixture sales Quick copy or duplicating center Recording studio School, commercial or trade, when not involving any danger of fire or      explosion, nor of offensive odor, noise, dust, glare, heat, vibration or      other objectionable factors Secretarial service Sex Shop (Ord. 7226) Sexually Oriented Media Store (Ord. 7226) Skating rink, commercial Studio for professional work or for the teaching of any form of fine arts,       photography, music, drama, etc. Swimming pool, commercial (parking requirements include pool area) Taxidermist Telephone answering service Theatre, drive-in Trailer sales and rental Transit vehicle storage and servicing Truck rental and sales 2.          Similar Uses Other business services which (1) are similar to the listed uses in function, traffic-generating capacity, and effects upon other land uses, and (2) are not included in any other use group. 3.          Manufacturing Uses Baked goods, candy, delicatessen, and ice cream, all for retail sales on the       premises only Clothing:  custom manufacturing or altering for retail, including custom       dressmaking, millinery, or tailoring 4.          Accessory Uses (Ord. 6578)	17 21 12 12 16 16 14 24 15 7 12 15 15 13 15 17 14 26 15 15 12 15 7 13 18 18 12 5 16 12 17 22 12 12 13 17 5 13 13 12 12 12 11 16 16 13 12 12 12 13 11 15 12 20 17 16 15 15	1428 1440 1405 1407 1453 1453 1415 1442 1414 1442 1459/1460 1459/1460 1459/1460 1437 1426
20-709.12				S	S		USE GROUP 14.  RETAIL - WHOLESALE SALES AND SERVICES.  Consumer and non-consumer type retail and wholesale stores and service establishments and accessory uses that serve a wide area, including the entire city and surrounding trade area. 1.          Retail - Wholesale Goods and Services Automobile body shop Blacksmith shop Building materials and lumber yards (parking requirements do not apply to       lumber sheds) Cold storage plant Contractor or construction offices and shops Dry cleaning plant, including carpet cleaning Farm equipment sales, service and repair Feed and fertilizer sales Freight depot, railroad or truck Hardware, industrial sales Ice plant Machine tools, sales, rental, repair Mini-warehouse facilities Pawnshop Sexually Oriented Cabaret (Ord. 7226) Sexually Oriented Motion Picture Theatre (Ord. 7226) Warehousing establishment Wholesaling establishment, including storage 2.          Similar Uses Other uses which (1) are similar to the listed uses in function, traffic-generating capacity, and effects on other land uses, and (2) are not included in any other use group. 3.          Accessory Uses (Ord. 6768)	15 22 15 13 17 15 12 15 15 17 15 22 15 N/A 12 12 9 17 12	1428 1456 1459/1460 1459/1460
20-709.13			S	S	S	S	USE GROUP 15.  AMUSEMENT, RECREATIONAL AND CULTURAL FACILITIES.  Uses similar in nature and traffic-generating capacities that appeal to large groups of people or that provide uses with high density (people to space) ratios whose primary intent is one of amusement or recreational pursuits or cultural enrichment. 1.          Indoor Recreational Amusement or Cultural Facilities Athletic club Auditorium Bowling alley Field house Game arcade, including video games Physical culture center and health services, including spas, gymnasiums,       reducing  salons, masseur/masseuse, or hot tubs Skating rink Swimming pool, commercial Theatre, indoor 2.          Outdoor Amusement, Recreational or Cultural Facilities Baseball park or batting cages, commercial Golf driving range or putting greens, commercial Golf, miniature or pitch and putt Marina Race track Stadium or amphitheater Swimming pool, commercial 3.          Similar Uses Other uses not specifically mentioned in this or any other use group which are similar in function and traffic-generating capacity to those specifically listed in this use group. 4.          Accessory Uses Uses which meet the requirements of the definition of accessory uses, Sections 20-2002(2) and 20-2002(3). (Ord. 5658, Sec. IX)	12 7 10 7 11 11 12 11 9 7 18 18 13 7 11	1428 1426/1427 1426/1427 1415 1426/1427